Why the Democratic Party Opposes “One Person, One Vote”

Ever since Donald Trump won the presidential election, the Democratic Party and its allies have had a renewed appreciation for the “one person, one vote” principle established in the landmark 1964 Supreme Court case, Reynolds v. Sims.

Even notable political scholars like Harvard professor Lawrence Lessig, who is not really a friend of the DNC, is wondering out loud why the Democratic Party doesn’t just file a lawsuit against the Electoral College for violating this clear constitutional standard.

In a recent column, for example, Lessig demonstrates how the Democratic Party would win if the electors were allocated, by state, in proportion to the way the individual voters of that state actually voted instead of the winner-takes-all fashion almost every state currently follows.

The only problem with Lessig’s argument is that he is wrong.

Fact is, the Democratic Party would never bring a lawsuit against the Electoral College under the equal protection clause.

He argues that California, for example, would have allocated 35 electors to the Democratic Party and 20 to the Republican Party, under a “one person, one vote” allocation. Texas would allocate 21 to the Republican Party and 17 to the Democratic Party, based on his proportional analysis.

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Because the “one person, one vote” standard applies to voters, not political parties. So under a legitimate equal protection analysis, what about the 3%+ voters who voted for Gary Johnson in California and Texas? Wouldn’t he get at least one electoral vote in each state?

And if a third party chipped away by getting one elector here and one elector there, wouldn’t that threaten the ability of the two party cabal to get the 270 votes they need in the first round to guarantee victory?

And if the president is not decided in the first round of the Electoral College, wouldn’t that open up Pandora’s box, since the electors are no longer bound by party loyalty?

Ummm, yes.

Keep in mind, Federalist Paper No. 68 suggested that electors should be completely devoid of political ties, “[t]hus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias.”

Also keep in mind that voters don’t actually vote for the president. We vote for electors selected by a candidate for president. When you think you are voting for president, you are actually voting for someone who has a sworn loyalty to a party’s presidential candidate.

A bit sinister?

Yes. But that’s how the two major parties like it. It diminishes the power of the electors, and maximizes the power of the two national parties.

Now back to the point. If we were to move closer to a “people’s votes matter equally” argument, where are the 4 million Libertarian votes in Mr. Lessig’s equation? It was enough in many states, by proportion, to peel off one electoral vote. Cobble enough of those together and neither the Republican nor the Democratic Party could win on round one of the Electoral College vote.

I doubt Lessig, a Harvard professor, made this oversight intentionally, but the two major political parties and their attorneys certainly have not overlooked it.

Fact is, the Democratic Party would never bring a lawsuit against the Electoral College under the equal protection clause.

First, we are talking about a party that uses superdelegates and blames Russia for leaking information about how the DNC rigged the primary election in favor of their pre-determined leader.

Nice “democratic” primary, right?

That is why it is important to understand and internalize that the Democratic and Republican Parties are private corporations. This is, for example, why the Democratic Party was allowed to exclude African American voters from its primary elections until the 1940s. Not until then was the Supreme Court willing to apply the constitutional protections of the 15th Amendment to the primary election and require that the Democratic Party allow African Americans to vote in the primary.

This is also why the Democratic Party was able to shut down California’s old “open blanket” primary in 2000, arguing that the state of California could not force political parties to allow nonpartisan voters to participate in primary elections. See Democratic Party v. Jones.

And just so you know I’m not picking on the unDemocratic Party, the Republican Party runs around the country trying to close down open primaries in states like Utah, Idaho, and Montana by citing Democratic Party v Jones in the courtroom.

Just last year, a federal court said New Jersey’s closed primary elections were constitutional even though 47% of the state’s voters are legally precluded from participating because they refuse to join the Democratic or Republican Party. Yet, New Jersey’s taxpayers paid $12 million to conduct them, and yet there was not a single competitive general election for statewide office in 2014.

You won’t hear this discussion of voting rights on Fox News or CNN or NBC — but that discussion is for another day.

Point is, the “one person, one vote” standard is a major threat to both parties. If the Democratic Party filed a lawsuit on that basis to prevent Donald Trump from getting elected and actually won, they might just wake up a sleeping electorate that, for the time being, still thinks elections serve people.

About the Author

Chad Peace

Chad Peace is president of IVC Media LLC, a partner at the law firm of Peace & Shea LLP, and legal strategist for the Independent Voter Project.
Chad developed the voter outreach strategy for California’s successful nonpartisan primary initiative and conducted the campaign to draft a current United States Senator to run for office. Most recently, he authored the City of San Diego’s Measure K and manages voter outreach efforts in local, statewide, and national efforts, including a major candidate for president of the United States.
In 2017, Chad was recognized by the American Association of Political Consultants as a "40 under 40" political professional to watch.